Disability discrimination: can a reduction of workload be a reasonable adjustment?

In an article first published by People Management magazine, Managing Associate Annabel Mackay reports on the case of the Home Office (UK Visas & Immigration) v Kuranchie, a decision highlighting the far-reaching nature of the duty to make reasonable adjustments for employees with disabilities.

Facts

Ms Kuranchie had "an excellent educational background" and had progressed through the Respondent's ranks to the position of Assistant Director. The parties agreed that she was disabled by reason of dyspraxia and dyslexia. In 2013 she expressed concern that a lack of adjustments to accommodate her disability meant that she was having to work long hours to complete her work. The Respondent agreed to the Claimant's request for compressed hours (36 hours worked over 4 days rather than 5 days) so that she would have greater opportunity to complete her work and could schedule hospital appointments on her non-working day. They also agreed to provide assistive software (specialist equipment and a static desk) when she moved locations.

No further adjustments were put forward by Ms Kuranchie at the time but her Tribunal claim for disability discrimination proceeded on the basis that the Respondent should have reduced her workload so that she would not be required to work longer hours than her colleagues in order to complete her tasks. This had not been mentioned in Ms Kuranchie's dyslexia report but was identified during the course of the Tribunal proceedings as a solution to remove the disadvantage. The Tribunal found that the Respondent had breached its duty to make reasonable adjustments.

EAT decision

The Respondent appealed against that finding, arguing that the Tribunal had arrived at a solution that had not been suggested by Ms Kuranchie and had not placed sufficient emphasis on the adjustments that had been made, namely compressed hours and the promise of assistive software.

The Employment Appeal Tribunal rejected that appeal and noted that the "critical question is whether the Respondent has taken such steps as is reasonable to have to take to avoid the disadvantage". The Tribunal had identified reduced workload as a reasonable adjustment. The fact that this solution had not been suggested by the Claimant was irrelevant when the adjustment had a real prospect of removing the disadvantage.

Comment

This decision shows that employers must apply a broad approach to the duty to make reasonable adjustments, having regard to the primary objective of the legislation which is to facilitate the employment of disabled employees on equal terms to non-disabled employees.

The employer cannot discharge its duty to make reasonable adjustments by merely relying on suggestions made by an employee and/or Occupational Health. The duty to make reasonable adjustments rests with the employer and they must consider carefully what steps might be taken to remove the relevant disadvantage.

This case does not address whether, had the Respondent reduced Ms Kuranchie's workload, it would have been required to maintain her salary at the same level as her colleagues. However, pay protection may be appropriate as part of a package of adjustments to encourage full participation of employees with disabilities in the workplace. In the case of G4S Cash Solutions (UK) Limited v. Powell, the Employment Appeal Tribunal found that pay protection to allow an employee to return to work in a less skilled role could be a reasonable adjustment in an appropriate case.

In deciding what is reasonable, an employer must consider all the circumstances including the effectiveness of the adjustment, its practicability, the financial and other costs of the proposed adjustment and disruption to third parties. As the Equality and Human Rights Commission Code of Practice states, "there is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask)."